Hsieh v Lawes

[2018] NZHC 60

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001829 [2018] NZHC 60

IN THE MATTER

of the Property Law Act 2007, ss 210

and 251

IN THE MATTER

of an application for an order for possession of land

BETWEEN

MEI-LAN HSIEH Applicant

AND

SPENCER LAWES Respondent

Hearing:	7 February 2018
Counsel:	DK Wilson for Applicant
Judgment:	7 February 2018

ORAL JUDGMENT OF DOWNS J

Solicitors:

Phillip Wong & Ben Bong Law Office, Auckland.
DK Wilson, Auckland.

HSIEH v SPENCER LAWES [2018] NZHC 60 [7 February 2018]

The case

[1]      Mrs Hsieh leased a property to Mr Lawes.  The lease expired. And converted to a periodic tenancy.  Mrs Hsieh gave notice of termination.  But Mr Lawes is still in possession of the property. Mrs Hsieh applies for an order for possession under s 251 of the Property Law Act 2007. The application is by way of formal proof as Mr Lawes has not taken any step in the proceeding.

Background

[2]      Mrs Hsieh  and Mr Hou are the  registered proprietors of the property at

62 Trig Road, Whenuapai.  Title was transferred to them on 8 April 2009.  Mrs Hsieh leased the property to Mr Lawes on 6 April 2009. The deed of lease provided the lease was for two years: 7 April 2009 to 7 April 2011.  There was no right of renewal.  The deed provided the purpose of the lease was for the property to be used for Mr Lawes’ “plant nursery/garden centre business”.

[3]      Mr Lawes remained in possession after 7 April 2011 and continued to pay rent. Clause 37.1 of the deed provides for a periodic tenancy in these circumstances:

37.1IF the Landlord permits the Tenant to remain in occupation of the premises after the expiration or sooner determination of the term, such occupation shall be a periodic tenancy only terminable by 20 working days’ notice at the rent then payable and otherwise on the same covenants and agreements (so far as applicable to a periodic tenancy) as herein express or implied.

[4]      Mrs Hsieh instructed Mr Bong, a solicitor, to terminate the lease. He prepared a notice of termination  on  3  November 2016.    It  was  served  on  Mr Lawes  on

4 November 2016.

[5]      Mr Bong has filed an affidavit. Copies of the notice of termination and relevant email are exhibited.  In an email dated 14 November 2016, Mr Lawes said he was willing to comply with the notice.  However, he requested an extension to the end of January 2017.  Mr Bong says a solicitor at the Waitemata Community Law Centre asked for an extension on Mr Lawes behalf until 31 January 2017.  Mrs Hsieh agreed to that. That was communicated by email on 1 December 2016. However, Mr Lawes did not leave the property.  I gather he has not paid rent for some time.

[6]      In the absence of any steps to defend the application, on 30 August 2017 van Bohemen J directed it proceed by way of formal proof.

Analysis

[7]      The first question is whether termination was valid.  The second, whether an order for possession should be made.

[8]      Clause 37.1 provides the periodic tenancy is terminable by the provision of 20 working days written notice.  In these circumstances, the common law requires the notice to expire at the end of the period.1   Section 210 of the Property Law Act does not apply in these circumstances as there is an express “holding over” clause.2

[9]      Mr Lawes was served with a notice of termination on 4 November 2016.3   He accepted the notice but asked for an extension. And as observed earlier, Mrs Hsieh granted one until 31 January 2017.   The extension took the period of notice well beyond the minimum required by law. Mr Lawes also agreed to vacate. Consequently, the termination was valid.

[10]     Section 251(1) of the Property Law Act provides:

251 Powers of court in making order for possession

(1)   On an application to a court for an order for possession of the land comprised in a lease, the court may make the order and cancel the lease.

[11]     Mrs Hsieh is one of the property’s registered proprietors.  She is entitled to possession as the lease was validly terminated over a year ago. An order for possession

should be made.

1      Lemon v Lardeur [1946] KB 613 (CA) and Jackson v Blagojevich (1997) 3 NZ ConvC 192,564 (HC).

2      Jackson v Blagojevich, above n 1; GW Hinde and others Principles of Real Property Law (2nd ed, LexisNexis, Wellington, 2014) at [11.019] and Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [8.6.04].

3      This notice was served in compliance with the requirements in cl 43 of the deed of lease and s 359 of the Property Law Act.

Conclusion

[12]     I order:

(a)       Mrs Hsieh is to have possession of the property;

(b)      The lease is cancelled; and

(c)       Mrs Hsieh is entitled to costs on a 2B basis.

[13]     There was a claim for unpaid rent, but it has been abandoned.

……………………………..

Downs J